Delhi District Court
State vs . Raghu Raj Singh Etc on 13 April, 2018
IN THE COURT OF SH. BHUPINDER SINGH, ADDL. CHIEF METROPOLITAN MAGISTRATE (NORTH), ROHINI COURTS, DELHI FIR No. 318/02 Police Station Mukherjee Nagar Under Section 395/397/411/34 IPC State Vs. Raghu Raj Singh Etc JUDGMENT
(a) Sr. No. of case 5287163/16
(b) Date of offence 08.07.2002
(c) Complainant Sh. Vinod Kumar
d/o Sh. Jagan Nath
r/o Gali no. 92, Shiv Kunj, Sant Nagar,
Burari, Delhi.
d) Accused 1. Raghuraj Singh @ Thakur
s/o Sh. Hari Om Singh
r/o Jhuggi no. B-20/172, Udham Singh
Park, 4 Block, Wazirpur, Delhi.
2. Fahim @ Chotte
s/o Sh. Sultan Ahmad
r/o Shop no. D-85, Main Market,
D Block, Jahangirpuri, Delhi
3. Ashif Ali @ Ashu @ Noor Alam
s/o Sh. Masooq Ali
r/o K-70, Sunder Nagri, Nand Nagri,
Delhi.
4. Gulzar s/o Sh. Mukhtyar
r/o Vill. Maseet, Distt. Bijnaur (UP).
(e) Offence Sec. 392/120B/411 IPC and Sec. 25
Arms Act
(f) Plea of accused Pleaded not guilty
FIR No. 318/02, PS Muknerjee Nagar State Vs. Sanjeev 1/23
(g) Final order Acquittal for the offence(s) u/s
392/120B/411 IPC and Sec. 25 Arms
Act
(h) Date of institution 30.11.2002
(i) Date when judgment 12.03.2018
was reserved
(j) Date of judgment 13.04.2018
THE BRIEF REASONS FOR THE JUDGMENT:
1. Briefly stated the case of the prosecution is that on 08.07.2002 at about 10.30 AM in front of Gurudwara, Near Aggarwal Sweets, Outram Line, Delhi within the jurisdiction of PS Mukherjee Nagar, accused Ashif Ali @ Ashu @ Noor Alam, Fahim @ Chotte, Gulzar and Raghuraj Singh @ Thakur in furtherance of their common intention hatched the criminal conspiracy to commit robbery and in pursuance of criminal conspiracy accused Ashif Ali, Fahim, Gulzar and Rashid (since discharged by Ld. Sessions court vide order dt. 01.04.2014) committed robbery of one briefcase make VIP containing cash of Rs.9.17 lacs and two cheques of Rs.1,18,831/- and Rs.5044/- kept in Maruti Esteem car no. DL-3CF-5915 which was in possession of complainant Vinod Kumar. On 23.07.2002, accused Fahim @ Chotte got recovered a sum of Rs.50,000/- from shop no. DL-85, Main market, Jahangirpuri and accused Ashif Ali @ Ashu got recovered Rs.10,000/- from iron trunk kept FIR No. 318/02, PS Muknerjee Nagar State Vs. Sanjeev 2/23 in a room situated near Sarai Kale Khan bus stand, they amount they have received or retained knowing or having reasons to believe the same to be robbed one and on 26.08.2002 accused Gulzar got recovered one prohibited country made pistol (desi Katta) loaded with one live cartridge, kept under the box in a room in village Masit, PS Himpur, Distt. Bijnaur (UP) and thus all accused persons thereby committed the offence punishable u/s 392/120B/411 IPC and Sec.25 Arms Act.
2. After completion of investigation, charge sheet was prepared and filed in the court against the accused persons whereupon cognizance was taken. After complying with the provisions of Sec. 207 Cr. P.C, the matter was committed to the court of Sessions. Vide order dt. 24.02.2003 the matter was remanded back to this court through the office of Ld. CMM since it was observed by Ld. Sessions Court that offence u/s 397 IPC is not attracted and remaining offence was triable by this court. Arguments on charge were heard and vide order dated 16.02.2013, passed by Ld. Predecessor, charge was framed against all the four accused persons for offence u/s. 392/120B IPC. Separate charges were also framed against accused Fahim @ Chotte and Ashif Ali @ Ashu @ Noor Alam for the offence u/s 411 IPC and against accused FIR No. 318/02, PS Muknerjee Nagar State Vs. Sanjeev 3/23 Gulzar for the offence u/s 25 Arms Act, to which they pleaded not guilty and claimed trial.
3. In Prosecution evidence, the prosecution got examined nine witnesses.
4. PW-1 is HC Rajesh Kumar, who deposed that on 26.08.2002 he was present at PS and had joined the investigation in the present case along with Ct. Jitender & SI Jai Prakash. He deposed that they had gone to the village of the accused Gulzar at Bijnore (UP) along with the accused and on reaching there accused took them to his house and produced one katta from inside the house. He correctly identified the accused in the court. He deposed that upon checking the katta one live cartridge was found inside the chamber. He deposed that IO prepared the sketch of the katta and cartridge Ex.PW1/A & Ex.PW1/B and thereafter took measurements of the katta and live cartridge and sealed the katta and the live cartridge with the seal of JP and the same were seized vide seizure memo Ex.PW1/C. He further deposed that thereafter they all returned to the PS and case property was deposited in the malkhana. He identified the case property i.e. katta and cartridge as Ex.P1 (colly). During his cross-examination by Ld. Defence counsel, he deposed that he left the PS for Bijonre at about 12.00-12.15 midnight in FIR No. 318/02, PS Muknerjee Nagar State Vs. Sanjeev 4/23 the private car of SI Jai Prakash. He did not remember the registration number and make of the car. He deposed that they reached at Bijnore at about 4-5 hours after leaving the PS but I did not remember the exact time. He deposed that after reaching Bijnore they first went to PS Bijnore but he did not know the specific name of the PS. He did know whether the IO place on record any documents pertaining to their arrival or departure at Bijnore PS. He further deposed that they reached at the village of accused after the sunrise in the early morning but he did not remember the name of his village and the exact time. He further deposed that they had not joined any public person i.e. sarpanch or resident of the said village while going to the house of the accused. He further deposed that they remained at the house of the accused for about 1- 1 ½ hours but he did not remember the exact time when they left Bijnore for Delhi but he stated that they reached Delhi at around 6.00 pm. He further deposed that while they were returning from the house of accused they had not gone anywhere. He denied the suggestion that all the proceedings were done while sitting at the PS by the IO or that he had not joined the investigation in the present case or that the accused was innocent and the katta and live cartridge were falsely planted upon him.
FIR No. 318/02, PS Muknerjee Nagar State Vs. Sanjeev 5/23
5. PW-2 is Retired SI Bhagwan Dass, who deposed that on 08.07.2002 while he was posted at PS Mukherjee Nagar he received DD No. 8A regarding dacoity through Ct. Vinod and thereafter he alogwith Ct. Vinod & Ct. Kishan went to spot i.e. Outram line, near Gurudwara and on reaching there he met the complainant Vinod Kumar who narrated him the incident. He deposed that thereafter he took the complainant for his medical treatment and recorded his statement Mark- A, prepared the rukka Ex.PW-2/A and handed over the same to Ct. Kishan for registration of FIR, who went to PS and got the FIR registered and returned with the copy of FIR and original rukka and handed over the same to him (PW-2). He deposed that in the meantime he prepared the site plan Ex.PW-2/B at the instance of the complainant and called the crime team, who inspected the vehicle of the complainant i.e. esteem car no. DL 3CF 5915 and took out the chance prints. He deposed that the photographs of the vehicle were also taken by the crime team. The FSL team also arrived at the spot and took the bloodstains from the vehicle and seized the exhibits vide seizure memo Ex.PW-2/C. He deposed that he seized the car bearing No. DL 3CF 5915 vide memo Ex.PW-2/D and also seized the broken glass pieces of the car vide seizure memo Ex.PW-2/E. He deposed that he also seized the blood stained shirt of the FIR No. 318/02, PS Muknerjee Nagar State Vs. Sanjeev 6/23 complainant vide memo Ex.PW-2/F. He deposed that thereafter it was revealed to him that the vehicle used by the accused persons was parked near Mahadev Mandir, Nehru Vihar mord and they all along with the complainant, crime team and FSL team went to the Nehru Vihar more where they found one Maruti 800 No. DL 7CC 1754 was parked there. The crime mobile team firstly inspected the said car and took the photographs and thereafter FSL team took the bloodstains from the car and seized the exhibits vide seizure memo Ex.PW-2/G. He deposed that thereafter he seized the said car vide memo Ex.PW-2/H and returned to PS along with the case property and the same was deposited in the malkhana. He also recorded the statements of witnesses. He deposed that thereafter the case was transferred to SI Randhir Singh. He identified the one sky blue colour blood stained shirt as Ex.P2. Further cross-examination of this witness was deferred for want of case property. However, the testimony of this witness was not concluded.
6. PW-3 is Sh. Mangal Sain Gaur deposed that he is the registered owner of Marti Car bearing no. DL-6CC-0827 and that his car was stolen in the year 2002, however, he did not remember the exact date and time. He further deposed that he had lodged an FIR in respect of the theft of his car at PS Shahdara in the year 2002 and that he was FIR No. 318/02, PS Muknerjee Nagar State Vs. Sanjeev 7/23 informed about the recovery of his car on the next day of the theft. He further deposed that he got released his aforesaid car. He further deposed that he had not brought the said car as the car was not in a position to run on road. He brought the three photographs of the said car and exhibited the same as Ex. P-1 (colly). This witness was not cross- examined by Ld. Defence counsels despite opportunity.
7. PW-4 is Dr. Harish Kumar, Medical Director, New Life Hospital, who deposed that on 08.07.2002 he examined one patient namely Vinod Kumar vide MLC no. 10/02 Ex. PW-4/A. He deposed that as per the patient the alleged history was that he was hit by a person while he was going to the bank to deposit the cash of Pepsi Company and he was hit on his nose by revolver. This witness was not cross- examined by Ld. Defence counsels despite opportunity.
8. PW-5 is Insp. Sheoraj, Finger Print Proficient, who deposed that on 08-07-2002, he alongwith ASI Deepak, photographer Ct. Rajan visited the scene of crime i.e. Maruti car 800 CC bearing no.DL-7CC- 1754 and another car Maruti Esteem DL-3CF-5915 and after examination of both cars, he developed 13 chance prints, in which 12 chance prints from the maruti car no. DL-7CC-1754 and no.13 chance prints was developed from the Esteem car. He deposed that the FIR No. 318/02, PS Muknerjee Nagar State Vs. Sanjeev 8/23 photographs of the aforesaid cars were also taken by the photographer and that he had prepared his detailed report of inspection which is Ex.PW5/A and that the same was deposited at office of the Director of Finger Prints Bureau for further necessary action. This witness was not cross-examined by Ld. Defence counsels despite opportunity.
9. PW-6 is ASI Satish Kumar, who deposed that on 09.07.2002 he was posted at PS Shahdara and that on that day at about 1.25 am the complainant Mangal Sen came to PS and he recorded his statement on the basis of which he registered FIR No. 255/02 Ex.PW-6/A. He deposed that after that copy of FIR was handed over to IO HC Virender for investigation. This witness was not cross-examined by Ld. Defence counsels despite opportunity.
10. PW-7 is Sh. L.K. Gaur, the then Ld. MM, who deposed that on 16-08-2002, while he was posted as MM Tis Hazari Courts, Sh. Sanjeev Aggarwal, Ld. MM marked the TIP proceedings of accused Gulzar to him and he fixed the day of TIP proceedings as 21.08.2002 vide application which is Ex.PW-7/A. He further deposed that on 21.08.2002, he conducted the TIP proceedings of accused Gulzar S/o Mukhtar and same is Ex. PW-7/B. He further deposed that thereafter, IO applied for the copy of TIP proceedings and he allowed the same vide FIR No. 318/02, PS Muknerjee Nagar State Vs. Sanjeev 9/23 application Ex.PW-7/C. He further deposed that the proceedings were put in an envelope and sealed with the seal of LKG.
11. PW-8 is Sh. Surender Kumar, Nodal Officer, Bharti Airtel, who after seeing the copy of CDR (running into 3 pages), placed on record of mobile no. 9810152034 from the period 01-07-2002 to 22-07- 2002, deposed that he cannot affirm whether the said CDR are provided by his office as there was no signature, seal or stamp of the company. He further deposed that it might be provided by his office to the police officer on the official mail ID. He also brought one letter dated 25-10-17 for the non-availability of CDR for the period of 2002 the same is Ex.PW- 8/A1. He also brought CAF of mobile no. 9810152034 the same is placed on record as Ex.PW-8/A. He deposed that as per the CAF the said mobile number was allotted to M/s T.C.N.S Ltd. having address at Plot no.C-28, Sector-59, Noida, UP. This witness was not cross- examined by Ld. Defence counsels deposed opportunity.
12. PW-9 is ASI Jitender, who deposed that on 19.08.2002, while he was posted as Constable at PS Mukherjee Nagar, he joined the investigation in the present case. He deposed that on that day, accused Aasif, who was in police custody, himself voluntarily took them to his rented room near Sarai Kale Khan bus terminal, Delhi from where he FIR No. 318/02, PS Muknerjee Nagar State Vs. Sanjeev 10/23 took out two bundles having currency notes of Rs. 50 each totalling to a sum of Rs. 10,000/- and that both the bundles were having the ink stamp of 'San Beverages Pvt. Ltd.' and having the printed slip of paper upon which 'Pepsi' was written was stapled. He deposed that the above said currency notes were taken into police possession by the IO by placing the same inside one pulanda which was sealed with the seal of JP and same were seized vide seizure memo Ex. PW9/A. He further deposed that on 26.08.2002, he again joined the investigation in the present case along with the IO and Ct. Rajesh when accused Gulzar had voluntarily taken them to village Masit, Disst. Bijnaur, UP which was his native place. He deposed that in the said village he had taken them to his residential house and in the said house he himself took them to one room and from inside the said room from under one trunk he took out one desi katta loaded with one live cartridge. He further deposed that he told that this was the same desi katta with which he had committed the offence in present case FIR and that there was red colour paint upon the barrel and body of the desi katta. He further deposed that on taking out the live cartridge from the said plastic katta after unloaded the same, the base of the live cartridge was engraved with KF32SAWL and IO put the recovered desi katta and the live cartridge upon two separate sheets of FIR No. 318/02, PS Muknerjee Nagar State Vs. Sanjeev 11/23 white paper and prepared their sketch. He deposed that desi katta and the live cartridge were placed inside one cloth and a pulanda was prepared which was sealed by the IO with the seal of JP. He deposed that the seal after use was handed over to him by the IO. He further deposed that sketch of the above said recovered desi katta is Ex. PW- 1/A and sketch of the recovered live cartridge is already Ex. PW-1/B and seizure memo of the recovered desi katta and live cartridge is already Ex. PW-1/C. He identified the desi katta and the cartridge as Ex. P1. All the four accused persons Raghuraj Singh, Fahim, Aasif Ali and Gulzar vide their joint statement recorded on 04.02.2004 had submitted that they shall not dispute the identity of the currency notes. He was cross- examined by Ld. Counsel for accused Aasif and Gulzar wherein he deposed that at the time when they reached at Sarai Kale Khan, there used to be a police post. He deposed that they had not made any departure and arrival entry in the police post. He denied the suggestion that no such arrival and departure entry was made by them as they had not gone there in the manner as deposed. He further deposed that when they reached Sarai Kale Khan they asked the persons in the neighbourhood to join the investigation but they all refused and that he did not remember the house number of the houses from which they FIR No. 318/02, PS Muknerjee Nagar State Vs. Sanjeev 12/23 asked the residents to join the investigation. He deposed that no written notice was served by the IO in his presence and that he did not remember the time when they reached Sarai Kale Khan. He admitted that many public persons were present there. He further deposed that they remained there for about 30-35 minutes. He admitted that the trunk was not seized and that no photographs were taken. I did not know as to who were present inside the said house when they reached there. I did not remember as to who opened the gate when they reached there nor did he remember whether the gate of the room was of wooden or iron. He deposed that no tenancy proof was collected by the IO in his presence and that nothing was recovered from the said room or from the possession of the accused or at his instance suggesting that the said room was on rent. He deposed that no person was examined by the IO in his presence regarding the tenancy. He denied the suggestion that nothing was recovered from the possession of the accused at his instance or that the recovery was planted upon the accused in order to falsely implicate him in the present case by the IO in order to show their efficiency in solving criminal cases. He further deposed that the seal with which the pulanda was sealed by the IO was returned back by him to the IO at the PS itself. He denied the suggestion that the case property was FIR No. 318/02, PS Muknerjee Nagar State Vs. Sanjeev 13/23 tempered with or that the case property was not sealed in the manner as deposed. He admitted that he had not handed over the seal to the MHC(M). He further deposed that they reached Bijnaur in the night at about 9-9:30 pm in govt. vehicle and he did not remember its number. He did not remember if any entry was made regarding the taking of govt. vehicle to another State. He did not remember the DD number vide which they made their arrival entry in the concerned PS at Bijnaur. He admitted that no such entry was there in the judicial record. He denied the suggestion that no such entry was there as they had not gone to Bijnaur in the manner as deposed. He further deposed that they reached the house of accused at Bijnaur at about 10-11:00 pm and that one constable from the local PS had accompanied them to the house of accused Gulzar but he did not remember his name. He deposed that IO had not recorded the statement of that constable. He denied that suggestion that he did not remember the name of the constable or whether his statement was recorded as they had not gone there in the manner as deposed or no police constable accompanied them in the manner as deposed. He deposed that they requested the neighbours to join the investigation but none agreed and that he did not remember their names and addresses or the number of houses visited by the IO. He FIR No. 318/02, PS Muknerjee Nagar State Vs. Sanjeev 14/23 further deposed that no written notice was served upon the public persons. He did not remember how many persons were present inside the said house or that who opened the said house or that the gate of the house was of wooden make or iron make or the floors in the said house. He admitted that no photographs were taken at the time or after the recovery. He denied the suggestion that no public witness was joined in the investigation by the IO as the entire investigation was conducted in the PS or that nothing was recovered from the possession of accused Gulzar or Aasif or that he had not gone to Bijnaur in the manner as deposed or that the case property was planted. He admitted that no site plan of the place of recovery was made. He denied the suggestion that the accused persons have been falsely implicated in the present case. This witness was not cross-examined by Ld. Defence counsel for accused Fahim and Raghuraj despite opportunity.
13. Since, despite ample opportunities, the prosecution had failed to examine the witnesses, therefore despite repeated requests of Ld. APP for the State to continue with the trial, vide order dt. 23.12.2017 PE was closed and the statement of accused persons u/s 313 CrPC were recorded in this case in which the accused persons pleaded innocence and stated that they have been falsely implicated. However, FIR No. 318/02, PS Muknerjee Nagar State Vs. Sanjeev 15/23 they did not lead any defence evidence.
14. I have heard the arguments of Ld. APP for State and Ld counsel for accused. I have also perused the record carefully.
15. It is fundamental principle of criminal jurisprudence that an accused is presumed to be innocent and therefore, the burden lies on the prosecution to prove the guilt of the accused beyond reasonable doubt. The general burden of establishing the guilt of accused is always on the prosecution and it never shifts.
16. The facts from which the present case FIR had emerged were that on 08.07.2002 at about 10.15 AM, the complainant Sh. Vinod Kumar who was working with San Beverages Pvt. Limited as driver, was going with the cashier Sh. Surjeet Jha in Maruti Esteem bearing no. DL- 3CF-5915 and carrying Rs.9,17,000/- cash and cheque worth Rs.1,18,831/- for depositing in the Syndicate Bank when another Maruti Car bearing no. DL-7CC-1754 came in front of their car and due to which he was forced to stop his car. Three boys came out of the said car, out of which two were carrying country made pistol and another was having a knife and robbed them of the VIP suitcase in which the cash and cheques were being carried.
17. Charge for the offences u/s 392/120B IPC were framed FIR No. 318/02, PS Muknerjee Nagar State Vs. Sanjeev 16/23 against all the five accused persons namely Ashif Ali, Faheem, Gulzar, Raghuraj and Rashid. However, accused Rashid was discharged by Ld. Sessions Court vide order dt. 01.04.2014. Apart from the same, accused Gulzar was also charged for the offence u/s 25 Arms Act, accused Faheem and Ashif Ali were charged for the offence u/s 411 IPC separately.
18. The complainant Sh. Vinod Kumar or the cashier Sh. Surjeet Jha were never examined by the prosecution despite opportunities and as such the version of the complainant remained unproved. During TIP proceedings Ex. PW-7/B the witness Sh. Vinod Kumar had correctly identified the accused Gulzar, however, the witness Sh. Vinod Kumar never stepped into the witness box and as such the accused Gulzar cannot be held guilty only on the basis of TIP proceedings. None of the witnesses examined by the prosecution, has witnessed the incident dt. 08.07.2002. The testimony of PW-2 retired SI Bhagwan Dass cannot be read in evidence as his testimony was never concluded.
19. PW-5 Insp. Shiv Raj deposed that he had developed 13 chance prints in which 12 chance prints were lifted from Maruti car no. DL-7CC-1754 and 13 chance prints were lifted from the Esteem car. He deposed that he prepared case detailed report of inspection which is Ex. FIR No. 318/02, PS Muknerjee Nagar State Vs. Sanjeev 17/23 PW-5/A and the same was deposited at the office of Director, Finger Prints Bureau for further necessary action. No report from Director, Finger Prints Bureau has been filed on record to suggest if the chance prints lifted from the said two vehicles matches with any of the accused persons facing trial. As such, the allegations against the accused persons for commission of offence u/s 392/120B IPC remains unproved.
20. The alleged recovery of Rs.50,000/- from accused Faheem and of Rs.10,000/- from accused Ashif Ali has also not been proved. None of the witnesses examined by the prosecution has deposed about the recovery of Rs.50,000/- from the accused Faheem. As per PW-9 ASI Jitender accused Ashif in police custody took them to his rented accommodation near Sarai Kale Khan bus terminal from where he got recovered bundles having currency notes of Rs.50/- each, totaling to a sum of Rs.10,000/-, the bundles were having ink stamp of 'San beverages Pvt. Ltd' and having the printed slip of papers upon which 'Pepsi' was written was stapled. Seizure memo of the currency notes was proved as Ex. PW-9/A. However, no witness has been examined by the prosecution from the complainant company to prove that the ink stamp or the printed slip belonged to them. Apart from it, the currency notes which were allegedly robbed of from the complainant were not FIR No. 318/02, PS Muknerjee Nagar State Vs. Sanjeev 18/23 having any specific mark so as to identify them with the recovered amount. No independent witness to the alleged recovery has been examined. Even the address of the rented accommodation of the accused Ashif from which the currency notes have been allegedly recovered has been mentioned. In his cross-examination, PW-9 could not even tell the house number. No tenancy proof was collected to show that the accused was residing therein. The prosecution has failed to prove that the amount of Rs.10,000/- and of Rs.50,000/- from accused Ashif Ali and Faheem were the part of the robbed amount.
21. Lastly, as regarding commission of offence u/s 25 Arms Act against accused Gulzar is concerned, the same has also not been proved by the prosecution beyond reasonable doubt. There are several contradictions in the testimonies of the witnesses examined by the prosecution. The photographs of the trunk were not taken. The ownership of the house from which the alleged recovery of the amount or that of the country made pistol was made, has not been ascertained. No public witness to the alleged recovery has been made. The seal vide which the pullanda was sealed was returned back to ASI Jitender by the IO at the PS itself. As per PW-9 ASI Jitender, they had reached Bijnore at about 09.00-09.30 PM in a government vehicle whereas as per PW-1 HC FIR No. 318/02, PS Muknerjee Nagar State Vs. Sanjeev 19/23 Rajesh Kumar they had left the PS for Bijnore at about 12.00-12.15 midnight in a private vehicle of SI Jai Prakash. As per ASI Jitender, they had reached the house of the accused at about 10-11 PM whereas as per PW-1 HC Rajesh Kumar they had not even left the PS at that time. No records have been placed on record to suggest if the police indeed went to the house of the accused at Bijnore since no DD entries be it of PS Mukherjee Nagar or that of concerned PS at Bijnore have been placed on record. No public witnesses have been joined.
22. In the case of "Hem Raj v. State of Haryana AIR 2005 SC 2110", it has been observed that :-
"The fact that no independent witness though available, was examined and not even an explanation was sought to be given for not examining such witness is a serious infirmity in the prosecution case. Amongst the independent witnesses one who was very much in the know of things from the beginning was not examined by the prosecution. Non- examination of independent witness by itself may not give rise to adverse inference against the prosecution. However, when the evidence of the alleged eye-witnesses raise serious doubts on the point of their presence at the time of actual occurrence, the unexplained omission to examine the independent witness would assume significance."
In the case of "Sahib Singh v. State of Punjab AIR 1997 SC 2417", it has been held as under:-
"Having gone through the record we find much substance in each of the above contentions. Before conducting a search the concerned police officer is required to call upon some independent and respectable people of the locality to witness the search. In a given case it may so happen that no such person is available or, even if available, is not willing to be a party to such search. It may also be that after joining the search, such persons later on turn hostile. In any FIR No. 318/02, PS Muknerjee Nagar State Vs. Sanjeev 20/23 of these eventualities the evidence of the police officers who conducted the search cannot be disbelieved solely on the ground that no independent and respectable witness was examined to prove the search but if it is found - as in the present case - that no attempt was even made by the concerned police officer to join with him some persons of the locality who were admittedly available to witness the recovery, it would affect the weight of evidence of the Police Officer, though not its admissibility."
In the case of "Massa Singh v. State of Punjab 2000 (2) C.C. Cases HC 11", conviction was set aside on the ground that it was obligatory on the part of investigating officer to take assistance of independent witnesses to lend authenticity to the investigation conducted by him. It was observed as under:-
"The recovery has been effected from a public place. The Investigating Officer could have taken the trouble to associate an independent witness to get the attestation of such independent witness regarding the authenticity of the investigation conducted by him. This aspect of the case has not been properly appreciated by the Court below."
In the case of "Gurbel Singh v. State of Punjab 1991 Crl.Rev. No.504 (P&H) and Dhanpat v. State of Punjab 2000 (1) CC Cases HC 52", it has been held that non-joining of independent witnesses is fatal to the prosecution case and accused is entitled to benefit of doubt.
23. Even otherwise, the sanction u/s 25 Arms Act has not been proved. It has been held in a catina of judgments that the rule of sanction is salutary and it must be followed. Further that, it is not a mere formality since act of possessing such firearms did not by itself make a person FIR No. 318/02, PS Muknerjee Nagar State Vs. Sanjeev 21/23 liable to criminal prosecution by the police. Since the sanction has not been proved by the concerned officer, the ingredients of offence u/s 25 Arms Act cannot be held to be satisfied and as such, the accused cannot be held guilty for the same.
24. No evidence has come on record to suggest that all the accused persons had hatched conspiracy for commission of said offence. PW-8 Sh Surender Singh, Nodal Officer, Bharati Airtel deposed that the CDR of mobile no. 9810152034 for the period 01.07.2002 to 22.07.2002 which was on record do not bear any signatures, seal or stamp of the company and as such he cannot confirm whether the same was provided by his office. He proved the CAF of the aforesaid mobile that it was allotted to M/s TCNS Ltd. Noida. However, his testimony is not sufficient to prove the conspiracy between the accused persons as the ownership of the mobile number has not been attributed to any of the accused persons. None of the witnesses examined have deposed the manner in which the said mobile number can be connected to have been used for the purpose of commission/ preparation of offence.
25. The prosecution is under legal obligation to prove each and every ingredient of the offence alleged against the accused beyond any reasonable doubt. Suspicion how so ever strong it may be, cannot FIR No. 318/02, PS Muknerjee Nagar State Vs. Sanjeev 22/23 replace the standard of proof required to establish the guilt of the accused persons. In the present case, the prosecution has failed to discharge its onus and the evidence available on record is not sufficient enough to substantiate the guilt of the accused persons. As such, all the ingredients of the offence u/s Sec. 392/120B/411 IPC and Sec. 25 Arms Act have not been satisfied.
26. Accordingly, accused Raghuraj Singh @ Thakur, Fahim @ Chhote, Ashif Ali @ Ashu @ Noor Alam and Gulzar are acquitted for the charges against them. File be consigned to record room.
Digitally signed by BHUPINDER BHUPINDER SINGH SINGH Date: Announced in the Open Court 2018.04.16 16:22:16 +0530 today on 13.04.2018 (BHUPINDER SINGH) ACMM (NORTH): ROHINI FIR No. 318/02, PS Muknerjee Nagar State Vs. Sanjeev 23/23